Section 167(5) of the Criminal Procedure Code is mandatory and the Magistrate is required to stop the investigation unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary.

1. :- This petition under section 482 Criminal Procedure Code is directed against the order dated October 29, 1980 of the Judicial Magistrate No. 1, Jodhpur taking cognizance against the petitioner under Section 4(2) Rajasthan Prohibition Act, 1969 (hereinafter referred to as the Act). The controversy relates to the interpretation of Section 167(5) of the Criminal Procedure Code.

2. The relevant facts are these. For an alleged offence under Section 4(2) of the Act the petitioner was arrested on 28.1.1979. However, the charge-sheet was not filed within six months from the date of arrest and it further appears that the investigation had not been completed. The petitioner moved an application in the court on 16-10-80 with a prayer that he be discharged because the investigation had not been completed within six months. This application was ordered to be listed for arguments on 29.10.1980. On that date no order was passed on this application as a charge-sheet was then filed and the Magistrate took cognizance of the offence.

3. It is argued by the learned counsel for the petitioner that provisions of Section 167 (5) are mandatory and the Magistrate should have stopped the investigation in the case because the officer making the investigation did not satisfy the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months was necessary. It is further argued that the investigation should be deemed to have been stopped even without a specific order by the Magistrate because the law enjoins upon the Magistrate that he shall make an order stopping further investigation into the offence as the officer making the investigation did not move an application before the Magistrate for continuation of the investigation. On the other hand the learned Public Prosecutor contended that provisions of Section 167(5) Criminal Procedure Code were not mandatory and in any case any illegality committed during the investigation would not affect the taking of the cognizance. I have considered the rival contentions carefully.

4. There is no direct authority on the point and it has to be decided on first principles. No doubt it was thus held in these authorities:-Dr. M.C. Sulkunte v. State of Mysore, (1970-3 SCC 513) : (1971 Cri LJ 519 at p. 523) :

"Although laying the trap was part of the investigation and it had been done by a Police Officer below the rank of a Deputy Superintendent of Police, it cannot on that ground be held that the sanction was invalid or that the conviction ought not to be maintained on that ground. It had been emphasised in a number of decisions of this Court that to set aside a conviction it must be shown that there has been miscarriage of justice as a result of an irregular investigation."
State of Andhra Pradesh v. P.V. Narayana (1971 SCC (Cri) 186) : (1971 Cri LJ 676) .

"An illegal investigation does not vitiate the trial. The High Court erred in quashing the proceedings against the respondent solely on the ground of illegal investigation. In order to set aside the conviction it must be shown that there has been miscarriage of justice as a result of bad and irregular investigation."
The earliest authority in this respect is H.N. Rishbud and Inder Singh v. State of Delhi (1955-1 SCR 1150) : (1955 Cri LJ 526) wherein it was thus held:-

"Held, that Section 5(4) and proviso to Section 3, Prevention of Corruption Act, 1947 (II of 1947) and the corresponding Section 5-A, Prevention of Corruption (Second Amendment) Act, 1952 (LIX of 1952) are mandatory and not directory and that an investigation conducted in violation thereof is illegal.
If cognizance is in fact taken on a police report in breach of a mandatory provision relating to investigation, the results which follow cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. It is well settled that an illegality committed in the course of an